ARISTOTLE AND THE LAW COURTS
David C. Mirhady1
Abstract: In the Politics, Aristotle recognizes participation in law courts as an
essential element in citizenship, yet there has been relatively little scholarship on how
he sees this participation being realized.2 References to law courts are sprinkled
widely through the Politics, Rhetoric, and Ethics, as well as the Athenaiôn politeia,
where their importance is revealed most clearly. Ernest Barker took great pride in the
English administration of law: if he had returned to write a more thorough treatment of
Aristotle’s political thought, he might well have focused on the courts.
Why is the politics of a law court so important? If the role of the judge is simply to determine truth and justice, it would seem unimportant whether there
was democratic participation. Indeed, in modern legal systems — many of
them in otherwise democratic states — judicial decisions are almost exclusively left up to professional lawyers, experts in the law. Lay members of
juries are allowed only to make determinations of fact, and then only after presentations of evidence that are tightly controlled by the professionals.3 In his
subdivisions of the aspects of phronêsis, however, Aristotle divides politikê
into bouleutikê (deliberative) and dikastikê (Nic. Eth. 6.8 1141b30), suggesting that dikastikê, which we might understand as ‘judicial (practical wisdom)’, might have received greater attention within Peripatetic studies,
though the closest we come to finding discrete works on the subject are two
titles in Diogenes Laertius’ list of Aristotle’s works: Peri dikaiôn and
Dikaiômata (5.24, 26). In this paper, I hope to reconstruct a coherent account
of the law courts, the dikastêria, from Aristotle’s works, including the
Athenaiôn politeia.
1 David C. Mirhady, Department of Humanities, Simon Fraser University, Burnaby
BC V5A 1S6, Canada. Email: dmirhady@sfu.ca
2 A.L. Boegehold, ‘Aristotle and the Dikastêria’ (Diss. Abstract), Harvard Studies in
Classical Philology, 63 (1958), pp. 526–8, concentrates on Ath. pol. 63–7, where the
mechanics of jury selection are described in great detail. See his now magisterial The
Lawcourts at Athens: Sites, Buildings, Equipment, Procedure and Testimonia (Princeton, 1995).
3 Terminology is difficult in this paper. Its subject matter is the dikastai and
dikastêria. The former may be translated as ‘judges’ or ‘jury’, since the modern distinction between judges who determine issues of law and juries who determine issues of fact
does not hold in ancient Greek legal systems. In Athens, and presumably elsewhere, the
dikastai swear an oath — so they are ‘sworn’ — to vote ‘according to the laws’ and by
their most just understanding (gnomei dikaiotatei). The dikastêria are the law courts, or
‘people’s courts’, as Mogens Hansen, The Athenian Democracy in the Age of
Demosthenes (Oxford, 1991), p. 178, calls the Athenian law courts. Aristotle takes for
granted that they consist of panels of numerous judges.
POLIS. Vol. 23. No. 2, 2006
2
D.C. MIRHADY
Ernest Barker took great pride in the English court system, which produced
its system of law,4 and justifiably so. It has been one of the great export items
from Britain. But his interrupted work on Aristotle’s political thought, begun
in 19065 and continued through his introduction, translation, and notes on
Aristotle’s Politics in 1946,6 gives only passing attention to the dikastêria,
despite their importance. He accepts without qualification the view of another
scholar, Gilbert, that ‘a ‘general uncertainty in the administration of justice’ is
one of the greatest defects of Athens’.7 If he had continued his studies of Athens and ancient political theory as intensively as he studied Britain and its
political and legal institutions, I suspect that he might have left a more generous interpretation.
In one particularly vivid passage, Aristotle describes a judge as the personification of justice, who mediates and thus achieves a mean = justice = equality
between disputants (Nic. Eth. 5.4 1132a5). In so doing, of course, he disregards the differences between a judge and an arbitrator8, as well as the notion
of punishment. An arbitrator, a diaitêtês, tries to work out an equitable settlement between disputants. In classical Athens the judge, the dikastês, has to
choose between one side and the other, making one side a winner and the
other the loser. There seem two different notions of justice in play, which
Aristotle is content at this point to ignore. His attempt at etymology, seeing
the dikastês as a dichastês, a halver (1132a29–32), puts emphasis on the arithmetic aspect of the corrective justice in which the judge participates. Unlike
his notions of distributive justice, which acknowledge differing statuses with
differing distributions of money and power, corrective justice’s arithmetic
equality follows the democratic notion that all free people receive equal justice. In this Aristotle’s judges follow a distinctly democratic principle.
Hippodamus and Solon
Aristotle considers several ideas of the Milesian Hippodamus regarding legal
systems, but rejects them all.9 The first is that all laws be divided under only
4
E. Barker, National Character and the Factors in its Formation (London, 1927),
ch. 4, deals at length with these issues, as he does, at somewhat less length, in the Ideas
and Ideals of the British Empire (Cambridge, 1951), pp.61–71.
5 E. Barker, The Political Thought of Plato and Aristotle (London, 1906).
6 E. Barker, The Politics of Aristotle (Oxford, 1946).
7 Barker, Political Thought, pp. 457–8.
8 Arist. Rh. 1.13 1374b 21–22, ‘the arbitrator looks at equity (to epieikes), but the
dicast looks (only) at the law, and the reason why an arbitrators was invented was that
equity might prevail’.
9 Hippodamus is most famous for his contributions to town planning, and he is said to
have accompanied the colonization of Thurii in 443BC. Aristotle says that he was the
first person not active in politics to speak about the best form of constitution (Pol. 2.8
1267b29–30).
ARISTOTLE AND THE LAW COURTS
3
three headings: hybris, damage (blabê), and killing (Pol. 2.8 1267b37–9), the
second that there should be an appeal court manned by chosen elders
(1267b39–41), and the third that judges should specify a specific penalty if
voting for conviction rather than give a simple verdict (1268a1–5). These
three areas touch almost exactly on the tripartite system Aristotle constructs
for considering law courts in Politics 4.16, namely, what they consider, who
is on them, and how they proceed.
The division hybris, blabê, thanatos clearly leaves out a great deal of law,
though perhaps Hippodamus may be excused for leaving out laws regulating
the state. His three areas all cover wrongdoing between private people, what
in classical Athens came under the heading dikai, which is also Aristotle’s
term (1267b38). Hybris presumably covers wrongdoing against persons,
short of killing, and blabê covers wrongdoing regarding property.10 The victims of the wrongdoing may pursue both of these, but killing clearly has to be
pursued by someone other than the victim. For Aristotle in the Politics, however, wrongdoing that threatens the polis is of much greater interest.
Aristotle makes no comment about Hippodamus’ appeal court of chosen
elders. What would he likely have thought? Such a court would severely limit
the authority of the other, presumably popular, courts. Athens’ Areopagus
and courts of the ephetai may at times have performed this role. They
included only a select number of men, and were certainly older, but Solon
limited them to homicide cases. Aristotle sees the popular courts as an important mechanism for power within the polis. He would not want them to have
been limited to a small and exclusive group of judges.
With regard to Hippodamus’ third idea, Aristotle says that Hippodamus
thought the judges should not commit perjury by making a judgment (under
oath) that did not conform to their precise belief. Aristotle deals with this
question at greater length than the other two, and in doing so reveals several of
his ideals for the law courts. First, Aristotle does see a difference between a
judge and an arbitrator, a dikastês and a diaitêtês. The arbitrator, or even a
panel of arbitrators in discussion, can make an independent decision to settle a
dispute, as Hippodamus suggests, but judges have to choose between alternatives offered by the disputants (1268b4–11). Aristotle notes with approval
that most legislators forbid discussion among judges (though I cannot see
how this could be done in practice). Moreover, each judge deciding a different
award would create confusion (1268b11–17). But Aristotle does make a concession: Hippodamus’ idea forces Aristotle to insist that the statement of
claim be written clearly, so that the judges will not fear the risk of perjury
(1268b17–22).
10 There has, of course, been a great deal of scholarship devoted to the Greek notion
of hybris, and it no doubt played a significant role in Greek thinking about justice. See
N.R.E. Fisher, Hybris: A Study in the Values of Honour and Shame in Ancient Greece
(Warminster, 1992).
4
D.C. MIRHADY
Solon takes an important place in both the Politics and in the Athenaiôn
politeia. He was the original architect of the Athenian democratic constitution, and in the Politics Aristotle is keenly interested in whether Solon actually intended democracy. Did democratic power in Athens result from
Solon’s decision to make the law courts democratic? Aristotle argues against
the notion in the Politics, preferring to credit Ephialtes’ docking of the power
of the (oligarchic) Areopagus, Pericles’ jury pay, and the increasing influence
of the dêmos resulting from its role in the naval victories over the Persians and
in establishing Athenian rule over the Aegean (Pol. 2.12 1274a1–12).
Many scholars have suspected the account of Solon in Pol. 2.12 as un-Aristotelian, but that hardly matters for this discussion of the relevance of the law
courts to political theory. The account in 2.12 attempts to see Solon as the
author of a mixed constitution, with oligarchic (the Areopagus) and aristocratic (elected officials) elements, as well as the democratic law courts
(1273b). It seems almost axiomatic to Aristotle that the law courts, like the
Assembly, should be constituted by all the citizens. It seems integral to the
Greek idea of freedom. But that in itself could hardly have accounted for popular sovereignty. So long as the questions posed to the courts were circumscribed, for instance to the three areas identified by Hippodamus, the dêmos
could hardly have had much power.
In the Athenaiôn politeia Aristotle points to other reasons for popular
ascendancy that were due to Solon. Along with other popular measures, such
as the prohibition of loans secured by the person and the right of volunteer
prosecutors to intercede on behalf of wronged third parties, Aristotle lists as
the chief basis for democratic power ‘the right of appeal (ephesis) to the law
court; for the dêmos, being sovereign over the vote, becomes sovereign over
the politeia’ (Ath. pol. 9.1). Plutarch expands slightly on this account,
explaining that appeals were made against the judgments of the magistrates
(Sol. 18.2), and both Aristotle and Plutarch explain the role played by the laws
being unclearly written, which left it up to the dikastêria to decide between
differing interpretations.
For Solon, the most basic elements in democratic participation were the
Assembly and the law courts. His lowest property class, the thêtes, were
restricted to these institutions alone (Ath. pol. 7.3). For Solon as for Aristotle
himself, the Greek ideal of freedom was expressed through these two institutions. Why this was so should become clearer in the next few pages, as several
of the issues that have been identified by looking at the evidence for
Hippodamus and Solon are investigated. After the connections between the
law courts and citizenship, I follow Aristotle’s own method for treating the
law courts, dealing with several related questions about the dikastêria under
the headings, from whom?, about what?, and how?.
ARISTOTLE AND THE LAW COURTS
5
Citizenship
A citizen is defined simply by nothing other than participation in judgment
and rule (Pol. 3.1 1275a22–23).
In this barest definition Aristotle makes the terms metechein kriseôs kai
archês carry a large load. Aristotle is envisioning rotating participation in
which all free adult males of the polis share, though he gives consideration to
superannuation and so on. Krisis is his term for judging cases, there being no
suitable noun to describe the activity of being a judge that is cognate with the
word for judge, dikastês. Likewise, archê has to stand in both for the activity
of being a magistrate, an archôn, and for taking part in deliberative bodies,
such as the Athenian boulê and ekklesia.
In response to Plato’s description of the essential parts of a polis, Aristotle
claims that the deliberative and forensic aspects are essential:
It is necessary that there be somebody to return and to decide justice; if
indeed one would count the soul of an animal to be more a part of it than the
body, one must also count such parts of poleis parts of them more than those
parts that contribute to necessary utility, the military and the part that participates in judicial justice, and in addition the deliberative part, deliberation
being a function of political intelligence (Pol. 4.4 1291a23–28; cf. 6.8
1322a5–6, 7.8 1328b13–14).
Schütrumpf points out that Aristotle puts special emphasis on the necessity
for justice and law courts because in his critique of Plato he can here catch
Plato leaving justice out of his ideal polis whose purpose is to promote justice.11 Those who perform these essential functions within the polis were for
Aristotle the truest politai.
As a negative example against his own preferred definition of citizenship as
consisting in participation in deliberative and judicial bodies, Aristotle points
to Sparta, where
suits for breach of contract are tried by different ephors in different cases,
while cases of homicide are tried by the elders and likewise other suits by
some other magistrate. The same method is followed at Carthage, where
certain magistrates judge all the lawsuits (Pol. 3.1 1275b9–12).
Sparta and Carthage are not democratic, so citizenship is more limited there.
Aristotle sticks with his definition, however, since none of the offices in
Sparta or Carthage are permanent; they are all for limited terms. When Aristotle suggests a correction of his definition it becomes exousia koinônein
archês bouleutikês kai/ê kritikês (3.1 1275b18–19).12 The substitution of
exousia koinônein for metechein seems to emphasize that actual participation
11
E. Schütrumpf, Aristoteles, Politik (Berlin, 1996), vol. III, p. 271.
There are disagreements over the reading. Most now follow Aretinus in substituting kai for ê, ‘and’ for ‘or’, which is what appears in the manuscripts. With the Spartan
and Carthaginian example focusing on judicial functions, the ‘or’ seems possible.
12
6
D.C. MIRHADY
is not as significant as the ability or possibility of participating, as in limited
term offices.
Why Aristotle thinks that participation in both deliberative and judicial
bodies is important for citizenship is not fully explained. After all, I have
never served on a jury — perhaps I never will — and yet I do not doubt my citizenship. For Aristotle, it seems, these two functions were the essential elements of the polis: the polis made decisions about what was beneficial for the
entire citizen body, and the polis had the sovereign power to resolve disputes
and punish wrongdoers. These functions could not be delegated. A select
body, like a Council, might manage day-to-day affairs, but the Assembly was
sovereign. Likewise, the dikastêrion was the dêmos in judicial matters. It
policed behaviour within the polis with the authority of the polis.
From Whom?
At the end of book 4 of the Politics, after treating the Assembly in ch. 14 and
the magistracies in ch. 15, Aristotle turns to the law courts in ch. 16. He
divides his treatment into questions of who mans the courts, whether from all
citizens or from a certain class, what kinds of court there are, and whether
selection to them is by election or lot.
Although in the Rhetoric Aristotle includes considerations against popular
courts as being more easily manipulated than single judges, in the Ath. pol.
and Politics he inclines more toward large juries, ‘for a few are more easily
corrupted by gain and by influence than the many’ (Ath. pol. 41.2; cf. Pol. 3.5
1286a31–40). There is a close identification between the dêmos acting
through decrees passed in the Assembly and the dêmos acting through the law
courts (Ath. pol. 41.2). Through these two institutions the dêmos made itself
lord of everything. So the question of whether an individual judge or a massed
panel of judges is better amounts in many ways to the same question as
whether an individual ruler or massed panel of rulers, like a popular assembly,
is better.
Aristotle needs to answer the objection that the many, considered individually, are ethically worse than the few, the elite, and thus should be denied a
part in decision-making. He answers the objection in a number of ways. First,
although the many are individually worse ethically, collectively they generally have greater ethical worth than the better few (Pol. 3.11 1281b1–14).
Second, the many collectively make up a body, coming at issues from different perspectives and having different parts of goodness and wisdom, and thus
have better judgment (1281b11–25; cf. 3.15 1286a24–30, 3.16 1287b25–30).
Third, if the many are denied a share in decision-making, they become enemies to those who do have a share (1281b27–35). As with food, a mixture of
highly nutritive food with less nutritive food is better than only the highly
nutritive food alone, so long as both are in the mixture (1281b35–38). Fourth,
like patients, the many are able to judge the results of a doctor’s ministrations
ARISTOTLE AND THE LAW COURTS
7
(the statesmen’s proposals/the litigants’ claims), even if they cannot be doctors (statesmen/legislators) themselves (1282a14–23). Fifth, although property qualifications for executive offices mean that such officials are richer
than average individual members of the dêmos, collectively the worth of the
dêmos is greater than that of any official (1282a30). Finally, sixth, as has been
mentioned, the many are less corruptible than the few. By ‘corruptible’ Aristotle has particularly in mind the susceptibility to emotion (1286a31–35; cf.
2.9 1270b12 on the corruptibility of the Spartan ephors).
Robinson argues that Aristotle nowhere says that the many have a right to
sovereignty.13 His arguments in favour of broad participation all centre on
what is objectively good. While it is true that his arguments centre on what is
objectively good, Aristotle does argue that ‘those who are by nature equals
must have the same right by nature and the same worth according to nature’
(Pol. 3.16 1287a12–13). He makes this argument against the inequality of
kingship rather than in favour of popular juries, but this is a passage in which
some of his strongest arguments appear for the rule of law. Rulers, viz. judges,
are only to be ‘guardians of law and servants to the laws’ (1287a21–22).
In the Athenaiôn politeia several considerations are introduced that have a
further bearing on the question of who mans the law courts. Courts in Athens,
or instance, had different sizes depending on the value of dispute: ‘claims
within 1000 drachmas came before a court of two hundred and one judges,
and claims above that before one of four hundred and one’ (Ath. pol. 53.3).
The principles involved here are on the one hand obvious, on the other somewhat obscure. A more important case should demand the attention of more
judges. But there is no sense that a more just judgment might result. There has
to be some limit to the need for greater size, and that limit would seem far
below even four hundred and one. Aristotle also recognizes that there are
cases whose worth does not justify the assembling of a large court (Pol. 4.16
1300b34–35).
In his discussion of how oligarchies are maintained, Aristotle lists five pretexts (prophaseis) that are made in response to the dêmos, that is, methods of
excluding it from power. Among these is the imposition of fines for those who
do not participate in the law courts, which would compel the rich more than
the poor to participate (it being understood that there is no jury pay). Whether
on not it seems likely to us that the rich would be more compliant to fines than
the poor, what Aristotle takes from the idea is clear. He wants ‘to mix justly’
the rich and poor in the deliberative and judicial bodies by achieving the right
balance between paying the poor for attendance and fining the rich for
non-attendance. Underlying these recommendations, of course, seems an
implicit cynicism about the class allegiances of those participating in these
bodies. That aside, it seems a practical issue for Aristotle to adjust the levels
of payment/fines in order to achieve his preferred mixture (Pol. 4.9
13
R. Robinson, Aristotle, Politics Books III and IV (Oxford, 1962), pp. 39–40.
8
D.C. MIRHADY
1294a41–b1). This mixture, he supposes will be best able to decide what is
objectively best or most just for the entire polis rather than for one of its constituent parts (cf. 4.14 1298b13–25).
One of Aristotle’s four kinds of kingship he characterizes as heroic, and he
includes the role of judge under this form of kingship, along with military and
religious leadership, making a king as general/judge/high priest, who decided
lawsuits on oath or without (Pol. 3.14 1285b5–12, 21–23). These kings are
not quite the same as the Homeric, let alone the Hesiodic, kings, who often
work by committee.14 For Aristotle they represent only historical relics.
In the Athenaiôn politeia Aristotle raises the issue of the local judges
(dikastai kata dêmous). Peisistratus originally sent them out from the city.
Aristotle claims that their purpose was that ‘men might not neglect their agriculture by coming into the city’ (Ath. pol. 16.5). It seems more likely that
Peisistratus was interested in extending the power of the polis against the prerogatives of local aristocrats, who may formerly have decided disputes among
locals. We learn nothing about how these judges were selected. In 453/2 Pericles followed Peisistratus’ lead in reinstituting these judges, numbering thirty
at the time, presumably one from each Cleisthenic trittys (Ath. pol. 26.3). Pericles’ reasoning is also unclear: he had no need to assert centralized control in
the way Peisistratus did; perhaps he wanted to relieve pressure on the central
courts by having minor disputes settled locally. In the 4th century, after the
number thirty had been disgraced, the number was increased to forty, and they
stayed put in Athens, deciding disputes valuing less than ten drachmas (Ath.
pol. 48.5, 53.2). At that point, the need for Athens to assert judicial authority
throughout Attica must have been taken for granted; perhaps transportation to
and from the asty had also become commonplace enough for worries about
losses in agricultural time to be no longer a concern. Aristotle seems to
acknowledge a need for a court like the Forty, the Local Judges, in his discussion of petty transactions, which do not fall to a large court, even if they do
require judgment (Pol. 4.16 1300b32–35).
About What?
Aristotle names eight kinds of courts eidê dikastêriôn (Pol. 4.16 1300b19).
But it is unclear where he got the number. His list is clearly more inclusive
than that of Hippodamus, but he leaves us wondering where Hippodamus’
category hybris should fall. Presumably it would be under private transactions, though in Athens it was treated under the graphê procedure, making it a
matter of public, rather than simply private, interest. Indeed the Athenian distinction between dikai and graphai is entirely absent from Aristotle’s
account.
14 See Homer, Il. 18.497–508, 23.566–613, Od. 11.543–51; Hesiod, Theog 80–93,
Op. 27–39.
ARISTOTLE AND THE LAW COURTS
9
Aristotle’s eight-fold listing is not as systematic as we could have hoped
for, but it is nonetheless worthwhile to investigate how it is articulated
(1300b19–34).
1.
audit (euthyntikon) (end of magistrate’s term)
2.
public interest (ta koina) (in particular situations)
3.
constitution (politeia)
4.
disputes about penalties, for both magistrates and private individuals
5.
private transactions (idia synallagmata) beside these
6.
homicide (deliberate, involuntary, justifiable, exiles)
7.
suits involving foreigners
8.
petty transactions
Along with Solon’s ‘appeal to the dikastêrion’ and Pericles’ payment for
jury service, Ephialtes’ contribution to the role of the dikastêria in Athenian
democracy is significant, although much harder to define precisely. In 462/1
he stripped the Council of the Areopagus of many of its powers ‘to safeguard
the constitution’ and transferred them to the Council of Five Hundred, the
Assembly and the courts (Ath. pol. 25.2). The powers transferred to the courts
are likely to have included those that regulated oversight of officials. Ath. pol.
48.4 and 54.2 both refer the auditing of officials, processes that had to be
brought before the law courts. At first glance, it might seem odd that the law
courts conducted such oversight inasmuch as the Council carried out most
executive responsibility. But final authority over the audits of the magistrates
appears to have rested with the dikastêria. In Athens, the dikastêrion often
works as an appeal court, e.g., against the demes regarding their membership
(Ath. pol. 42.1).
‘Public interest’ seems a hugely vague area. Plato, Laws 767b–c, sees a distinction between private individuals making claims on each other and people
making claims against other on behalf of the common good, and this seems
the distinction here. In Athens the graphê procedure instituted by Solon, by
which a voluntary prosecutor might intervene, entailed recognition that private individuals might dispute not only their private matters, but also matters
of concern to the integrity of the polis. But what seems to be envisioned here
are acts against the polis, refusal of military service, and so on, for which, in
Athens, either a graphê (against individuals) or the eisangelia (‘impeachment’, against those in an official capacity) might be used.
As Shütrumpf notes, the eisangelia was also the primary procedure used
against those who would ‘subvert the dêmos’.15 This is the sort of thing Aristotle has in mind when he writes about things that ‘bear on the constitution’
15 Schütrumpf (see note 11), vol. 3, p. 421. According to the Lexicon Rhetoricum
Cantabrigiense, s.v. eisangelia, Aristotle’s colleague Theophrastus (636B FHS&G) dis-
10
D.C. MIRHADY
(eis tên politeian pherei). Hyperides, Lyc. 12, notes that such broad charges
are easily abused, for instance by those who would use impeachment against
those involved in sexual improprieties.
Disputes about penalties ‘for both magistrates and individuals’
(1300b21–22) are at first not entirely clear, and other passages in the Politics
(5.4 1304 a13–17 and 6.5 1320a9–11) are not especially helpful. But Ath. pol.
45.1 tells the story of Lysimachus who was sentenced to death by the Council,
until Eumelides objected that he could only be sentenced to death by a
dikastêrion. So began the law that only the law court could pass such sentences. More importantly, this is an instance of that Solonian principle of
allowing appeal to the law court, whether for a magistrate accused of malfeasance or for a private individual. Many such instances of appeals are mentioned in the Ath. pol. (Ath. pol. 45.1–3, 46.2, 48.2, 54.2, 55.2, 56.1, 61.2).
Aristotle makes useful distinctions between voluntary and involuntary
transactions. Under the former he includes buying and selling, lending, under
the latter theft, adultery, poisoning, and so on, including violent acts, such as
assault and killing (Nic. Eth. 5.2 1131a1–9). With the exception of the last
two, these would all seem to fall under Hippodamus’ blabê. They would probably fill the majority of the courts’ activities.
Aristotle describes the first five of his categories as much more important
than the last three. When he describes what democratic law courts in particular should interest themselves in, he says ‘everything, or on the majority and
the most important and the most authoritative matters, such as audits, the constitution, and private transactions’ (6.2 1317b25–28). He describes these matters as politika, ‘which when not well conducted cause conflicts and
constitutional changes’ (1300b37–38).
Aristotle’s last three matters with which judges may concern themselves do
not seem exhaustive at first. Homicide, suits involving foreigners, and petty
transactions do not cover everything, but we should recall just how widely his
notion of transaction (synallagma) goes. Athens’ law courts certainly handled
what we would now consider criminal matters, thieves and so on, as well as
contractual disputes (Ath. pol. 52.1, 3, 56.1, 57.1). As well as contract disputes, however, Aristotle’s synallagmata include theft, violence, abuse of
parents, even adultery. His expanded discussion of Athens’ various homicide
courts may be undertaken as an answer to discussion of Sparta’s various
courts (2.9). The method of selection to the Areopagus, for instance, was profoundly different from that of the other, popular courts.
Within a discussion of what matters are decided in courts, the question of
the courts’ fidelity to the laws must also arise. Aristotle is without a doubt an
advocate of the subordination of all executive and judicial power to the rule of
cussed eisangelia in the fourth book of his On Laws. Besides ‘subversion of the democracy’, Theophrastus says it also applied if an orator took bribes and gave less than his best
advice, or if someone betrayed a position or ship or army, and so on.
ARISTOTLE AND THE LAW COURTS
11
law. He champions the view already early in the Politics: ‘just as a human
once perfected is the best of animals, so also, if separated from law and justice
is worst of all’ (Pol. 1.2 1253a31–33; cf. 2.10 1272b5–7). He treats the issue
of the rule of law first through the question of whether it is better to be ruled
by any one citizen, so the question of the rule of law is not at first related to
that of democratic dikastêria directly: ‘the rule of law (ton … nomon archein)
is preferable to that of any one citizen’ (3.16 1287a18–20cf.) But when Aristotle takes up the different forms of democracy, all those in which ‘the law
rules’ seem to get approval (4.4 1291b30–1292a4), but that in which popular
decrees (psêphismata) are sovereign and laws are not invites rule by demagogues. The dêmos becomes despotic. Its receptiveness to accusations against
magistrates leads to the subversion of their authority (1292a28–30).
One essential part of the judges’ oath in Athens contained the formulation
that the judges vote ‘according to the laws’.16 While this formulation certainly
agrees with the spirit of Aristotle’s arguments, it also departs somewhat. The
plural ‘laws’ is important for the Athenians. The oath refers to the statutory
laws (plural) of the Athenian polis rather than to any abstract notion of law.17
Aristotle suggests that customary laws (kata ta ethê) had more authority than
written laws, a suggestion that does not appear in the approximately one hundred surviving courtroom orations from Athens. The second essential part of
the Athenian dikastic oath entailed that the judges vote gnomêi dikaiotatêi.
There is debate whether the Athenians understood that this phrase refer simply to areas where there are gaps in the laws or if it referred to receptivity to
equity argumentation in general.18 In the Politics, Aristotle says that ‘the law,
having educated suitable people, appoints (some of them) to judge by their
most just understanding (what it has not defined)’ (Pol. 3.16 1287a25–26).
His emphasis seems to be throughout that magistrates, including judges, are
needed because laws cannot decide the facts of particular situations. Here it
also seems likely that he is referring to particular situations, to questions of
fact, rather than to gaps in legislation.
In his famous formulations Aristotle’s sees law as ‘reason without appetite’
(aneu orexeôs nous 3.16 1287a32), and as ‘the mean’ (to meson 1287b4).
These are advanced as part of his arguments favouring the sovereignty of law
over sovereignty of men. As an example of appetite he gives friendship, the
single ruler compromising justice because of his friendship with an individual. The democratic dikastêrion would obviously not be as susceptible to
16 See D.C. Mirhady, ‘The Dikasts’ Oath and the Question of Fact’, in HORKOS: The
Oath in Greek Society, ed. A.H. Sommerstein and J. Fletcher (forthcoming, Bristol Phoenix Press).
17 E.M. Harris, ‘Open Texture in Athenian Law’, Dike, 3 (2000), pp. 27–79, makes
this point convincingly.
18 J.O’Neil, ‘Was the Athenian gnome dikaiotate a principle of equity?’, Antichthon,
35 (2001), pp. 20–9.
12
D.C. MIRHADY
friendship, but Aristotle notes some of its own weaknesses, that some people
have treated the dêmos like a tyrant in order to have influence (Pol. 2.12
1274a5–7). Aristotle also recommends that when the court is asked for a judgment about whether personal property should be confiscated, the confiscated
property should not go into the purse of the polis (from which the judges draw
their payment) but for religious purposes (6.5 1320a6–9). Aristophanes’
Wasps makes a great deal of the dangers of an almost symbiotic relationship
between the judges and sycophantai, the malicious prosecutors who could be
encouraged by the judges’ convictions to prosecute more (cf. Pol. 5.5
1304b20–24).
In the Athenaiôn politeia Aristotle appears to see the democratic judges acting largely without the controls of laws, inasmuch as they are not drafted simply or clearly, but he rejects the notion that Solon intentionally empowered
the dêmos by drafting his laws vaguely (Ath. Pol. 9.2). As examples, however,
Aristotle puts emphasis on inheritance laws and the law regarding heiresses
(9.2), and, indeed, the ambiguity of these laws is raised again as something
that the Thirty tyrants wished to eliminate (35.2). He makes a point of identifying the abuses of both the Four Hundred in 411/10 and of the Thirty in 404/3
with restrictions of the powers of the law courts (Ath. pol. 29.4, 35.2). The
Thirty abolished the sovereignty of the dikastai by removing ambiguities in
the law (Ath. pol. 35.2). It seems remarkable that they could do so, since the
legislators would presumably have eliminated ambiguities themselves if they
could have done so. But the example Aristotle gives is the restrictions on the
absolute power of a testator to decide to whom his estate should go. Of course
Athenian law traditionally demanded that estates go to children of the
deceased, but, for those without children, there were restrictions against men
who made wills while sick, drunk, or under the influence of a woman (!).
These latter restrictions gave occasion to malicious litigators (sykophantai) to
challenge wills. It seems remarkable that Aristotle would choose this area as
exemplary of the Thirty’s actions against the law courts, since the courts
could hardly have derived much political power from the administration of
wills.
When we reflect that on the identification of the dêmos in both the Assembly and the law courts, questions arise regarding just how differently the same
people could vote. What was it about the dikastêrion that prevented the judge
from voting in the same way that he might in the Assembly? What facilitated a
distinct realm for dikastic rather than deliberative thought? A partial answer is
offered at Ath. pol. 49.3, even though it hardly seems to concern a judicial
matter: ‘at one time the Council used also to judge the patterns for the Peplos,
but now this is done by the dikastêrion, which is selected by lot, because the
Council was thought to show favouritism in its decision.’ The suggestion
seems to be again that the dikastêrion was more immune to favouritism.
ARISTOTLE AND THE LAW COURTS
13
Unlike in the Assembly, even when it played a quasi-judicial role, the
dikastêria used only a secret ballot. The probolê procedure illustrates its use.
By it a prosecutor attempted to get a preliminary conviction by means of a
show of hands in the Assembly or Council. There was no official consequence
to this vote, except that it led to the charge being introduced into the law court,
which then voted by secret ballot (Ath. pol. 43.5, 59.2). Whether a vote is open
or secret would seem to have some importance for political theory, but Aristotle does not discuss the issue.
Issues of evidence also fall under the heading of what matters the dikastêria
are to judge. As was pointed out at the beginning of this paper, in modern law
the professional jurists, who decide what the juries may know and consider,
tightly control issues of evidence. In Athens there were also controls on evidence: ‘the litigants are not permitted to use laws or challenges or evidence
other than those passed on by the Arbitrator, which have been put into the evidence-boxes’ (Ath. pol. 53.3). This limitation on evidence is probably more
important for the empowerment of the arbitrators than it is for the dikastai.
The litigants have to take the arbitration seriously by presenting all their evidence there.19 Another way in which evidence can have a political implication
is in determining who can appear as witnesses. In Athens only free, adult
males could give testimony before a dikastêrion. Women, children, and
slaves were excluded.20
The description of the dokimasia reveals an interesting area of responsibility for the dikastêria. This was the formal scrutiny of the magistrates for
office in the Council:
the official puts the question to a show of hands in the Council or to a vote
by ballot in the Jury-court; but if nobody wishes to bring a charge against
him, he puts the vote at once; formerly one person used to throw in his ballot, but now all are compelled to vote one way or the other about them, in
order that if anyone being a rascal has got rid of his accusers, it may rest
with the dikastai to disqualify him. (Ath. pol. 55.4)
Most judicial proceedings in Athens depend on a prosecutor. Here there is an
acknowledgment that the court can act without one.
19 The arbitrator himself is likely to be an experienced dikast. The arbitrators were
selected by lot from a list of all the Athenian 59–year olds, those in their last possible year
of military eligibility, men who have been qualified to serve as judges for exactly half
their long lives (Ath. pol. 53.4). This aspect of the Athenian constitution seems to give
some small acknowledgement — along with the general requirement for judges to be at
least thirty years old — to the need for experience in deciding legal cases.
20 See D.C. Mirhady, ‘Athens’ Democratic Witnesses’, Phoenix, 56 (2002),
pp. 55–74.
14
D.C. MIRHADY
How (are Courts Selected)?
And necessarily all the people judge all the cases divided by election or by lot,
or all the people (judge) all the cases, some by lot and others by election, or
(they judge) some cases, the same ones, some judges (appointed by lot) and
others by election. (Pol. 4.16 1300b38–42)
Aristotle’s permutations of judges selected by election or lottery baffles the
mind, but he actually prefers a mixture of judges selected by lot and by election as ‘aristocratic and constitutional’ (1301a14), that is, conforming with
his best constitution. Although he offers no explanation here, it seems to
result from his belief in a healthy mixture of rich and poor as constituting,
from a practical point of view, the best governing body, the one most likely to
come up with objectively just judgments.
The procedures for jury selection that are detailed in Ath. pol. 63–7 are
quite elaborate; their detail goes beyond the scope of this paper. But a couple
of points are worth noting. First, there is random selection by tribes, so that
each of the ten Cleisthenic tribes is represented equally at each trial (63.1–2).
We do not find out how each of the three geographic regions within each tribe,
its three trittyes, is represented, but it seems likely that they all were. There is
here the continuing attempt of the Cleisthenic constitution to achieve a geographic cross-section of the Athenian population. Second, within each tribe,
steps are taken to break up groups, there being ten equal groups within each of
the ten tribes (63.2, 4). The lottery process systematically divided them.
All the judges are older than thirty (Ath. pol. 59.1). This provision contrasts
somewhat with Aristotle’s view that in a democracy officials should be ‘from
all’ (Pol. 6.2 1317b19). Athenians from the age of eighteen were enrolled in
their demes and could participate in the Assembly and fight in wars, so for
twelve years their citizenship was limited by the exclusion from the courts,
but Aristotle makes no comment about this. Our impression from
Aristophanes’ Wasps is that the dikastai were generally poor old men, and no
young men were pining to join them. At Pol. 6.2 1316b21 Aristotle concedes
that some offices call for ‘experience and skill’. He is probably thinking of the
generalship, but to some extent the age restrictions for jury service may also
reflect the need for experience (empeiria), if not for skill (technê). Athens
appears to have had no upper age limit for service as a dikastês. However,
Aristotle objects to the Spartan elders having life-tenure over important judgments partly because ‘there is old age of mind as well as of body’ (2.9
1270b40)
The Ath. Pol. suggests that Aristides created a food supply from the Delian
League funds, in part in order to feed 6,000 judges (Ath. pol. 24.3). Two
things give pause: first, this is the first we hear of the number 6,000, although
ARISTOTLE AND THE LAW COURTS
15
it appears also in Aristophanes, Wasps 662.21 Second, Pericles has not yet
introduced pay for jury service, so the need to feed the jury could not have
been a motive for Aristides. The limitation of the pool of jurors to 6,000 seems
to contradict several pieces of evidence that indicate that the only criteria for
jury service were Athenian citizenship, an age over 30, and freedom from
debt to the polis. It seems likely that the number 6,000 represents an approximate number of those who generally participated in the dikastêria rather than
a limit.
Aristotle explains Pericles’ introduction of jury pay as a move of political
strategy, under the advice of Damonides or Oea, against Cimon, who, with his
vast personal wealth, could curry favour in the dêmos with his own money
(Ath. pol. 27.3; cf. Pol. 2.12, 1274a8–9, 4.6 1293a4–9, Plut. Per. 9.2–3). The
payment was a half-drachma, which compares with one to one and a half
drachmas for Assembly meetings and 5/6 of a drachma for Council meetings
(Ath. pol. 62.2). The amounts seem inversely related to how often each panel
met. The dikastêria met much more often than the Assembly, but only somewhat more often than the Council. Aristotle approves of the notion that all citizens should participate in jury service, but since it requires jury pay, where
there is little money for such pay, either a representative Council might take
on some judicial responsibilities (6.2 1317b30–32), or the large dikastêria
might meet only for a few days, but more efficiently (6.5 1320a22–27).
Aristotle says that ‘some critics’ — certainly including Plato,22 but not limited to him — claim that jury pay resulted in a deterioration in the law courts,
since the run of the mill (and thus ethically worse) people were more zealous
about getting their names entered for participation in the juries (Ath. pol.
27.4). He also claims that jury bribery began soon after the introduction of
jury pay, although the event that he mentions, Anytus’ bribery of the court
after his command at Pylos, must have been at least forty years later (Ath. pol.
27.5). Despite the size of the jury, if a case were close, successful bribery
might result even if it influenced only a handful of jurors. On the other hand,
the stringent procedures for mixing judges among various courts outlined in
Ath. pol. 63–67 suggest that any attempts at bribery would see a great deal of
money going to judges who would not even sit on the case in question.
Aristotle’s Rhetoric
The beginning of Aristotle’s Rhetoric includes several comments critical of
rhetoricians and of the law courts. The law courts were the paradigmatic
venue for orators trained in rhetorical theory, and Aristotle accuses the handbook writers of teachings devoted more to emotional manipulation of judges
21 And. 1.17 mentions that a case was tried before 6,000 judges, but he gives no indication that this number exhausted the supply of them.
22 Cf. Pl. Gorg. 515e2–4: Pericles has made the Athenians idle, cowardly, talkative,
and avaricious, by starting the system of public fees.
16
D.C. MIRHADY
than to speaking logically and to the point: ‘for it is wrong to warp the dicast’s
feelings, to arouse him to anger, jealousy or compassion, which would be like
making the rule crooked which one intended to use’ (Rhet. 1.1 1354a24–25).
It seems clear that Aristotle includes these comments not because he
embraces their dismissal of rhetoric — their point of view is so entirely different from what is said in the Politics and in book two of the Rhetoric, where
emotions are discussed in great detail — but as a sort of dialectical challenge
for Rhetoric. The points of this challenge are worth noting:
•
It is easier to find one good legislator than many competent judges
(1354a33–b1)
•
The judgment of the legislator is universal. (1354b5–8)
•
Judges decide on the spur of the moment.(1354b3)
•
The influence of emotions prevents judges from seeing the truth.
(1354b9–11)
Therefore,
•
The judges must decide, as much as possible, only questions of fact.
(1354b14–16)
•
The orator must not arouse prejudice or emotions in the judges.
(1354b16–20)
•
Where questions of law are left unclear by the legislator, the judge is
not to take instruction from the litigants. (1354a28–31)
As has been observed above, Aristotle embraces the rule of law unambiguously, and the reasons for his support of the decisions of legislators over the
decisions of judges in the Rhetoric are consistent with those he gives in the
Politics. In the Politics, however, he is more realistic about the great range of
issues that are not foreseen by the legislator. In the Rhetoric, for instance, the
phrase in the dikastic oath, gnomêi dikaiotatêi, is seen as giving license to
judges to vote contrary to the law (Rhet. 1.15 1375a29–30). In the Politics, it
is only seen covering what the laws do not. At the beginning of the Rhetoric,
the judges of the popular court are seen as vulnerable to emotional manipulation in contrast with the legislator (or perhaps also with the practitioner of dialectic). In the Politics, the contrast is made with the single judge, who would
be more susceptible to emotion, the beast (Pol. 3.16 1287a30), than a large
panel of judges would be.
The limitations of the judges’ decisions to questions of fact is likewise consistent between the Rhetoric and Politics, but a severe limitation would diminish the democratic aspect of the law courts. The judges in Athens in fact had a
great deal of freedom to judge cases as they saw fit; they were accountable to
no one, except in their oath. The nature of ancient legislation left an enormous
amount of room for judgment. The law against hybris, for instance, had no
ARISTOTLE AND THE LAW COURTS
17
definition of what hybris was, and scholars today still debate the issue. It was
left to the judges to decide what hybris was, as well as whether someone
punched someone else and whether that constituted hybris.
To Govern and be Governed in Turns
But one factor of freedom is to rule and be ruled in turn; for democratic justice is to have equality according to number, not worth, and if this is justice,
the multitude must be sovereign and whatever seems best to the majority
this must be final and this must be justice, for they say that each of the citizens ought to have an equal share (Pol. 6.2 1317b2–7).
It has been the goal of this paper to review Aristotle’s views on law courts,
especially the democratic law courts, and to identify issues for political theory. Aristotle’s identification of participation in judicial decisions as an integral part of citizenship begins a series of interesting issues: the lack of experts
in ancient Greek jurisprudence, the need for a balance of rich and poor, the use
of jury pay, a secret ballot, the range of cases and issues to be decided by law
courts, fidelity to the law, methods of jury selection and so on. There seems a
great deal of room for further investigation. Ernest Barker had a life-long
sympathy with Aristotle and shared with him beliefs in the priority of the rule
of law over that of ‘men’ and reason over passion in the adjudication of law.
His own grounding in such Aristotelian political theory led him on to research
English law and politics, where questions about law courts and judges are not
framed in the same ways as they can be for the democratic Athenian courts,
but which were not dissimilar in the ends they pursued.
David C. Mirhady
SIMON FRASER UNIVERSITY